Event and Time
Event Description
This case concerns the enforcement of compliance with the Fair Work Act 2009 (“the Act”) in relation to the underpayment of wages and superannuation by a company operating a Vietnamese restaurant and its director.
Application and Claims
- The Fair Work Ombudsman (the applicant) issued a compliance notice on 23 October 2019 to the first respondent (the restaurant company) for alleged underpayment of wages and superannuation to three employees between 12 April 2016 and 23 September 2019.
- The Ombudsman alleged violations of:
- Section 716(5) of the Act for failing to comply with the compliance notice. - Section 535(1) of the Act for failing to maintain required employee records. - Section 536(1) of the Act for failing to provide pay slips to the affected employees.
- The second respondent, as a director of the company, was alleged to have been involved in these contraventions.
Judicial Decisions
The court made the following orders and declarations on 14 February 2022: 1. The first respondent must calculate and pay any outstanding superannuation contributions and the applicable interest within specified time frames. 2. The first respondent must provide proof of payment of the outstanding contributions to the Ombudsman. 3. The first respondent is required to pay a total pecuniary penalty of $58,684.50 to the Commonwealth. 4. The second respondent is required to pay a pecuniary penalty of $7,654.50 for his involvement in the contraventions.
Dispute Points and Legal Basis
Dispute Points
Applicant's Position:
- The Fair Work Ombudsman claimed that the first respondent failed to meet its obligations under the Fair Work Act, including:
- Not rectifying unpaid superannuation contributions and wages despite being given a compliance notice. - Failing to keep employee records and provide pay slips as required.